Right To Trade Not Absolute: Orissa High Court Declines To Relax Minimum Qualifications For Konark Temple Tourist Guides' Licenses

The Orissa High Court on Monday declined to grant relief to a number of photographers/guides working in the precincts of Konark Sun Temple who challenged a new policy requiring minimum qualification of matriculation for grant of license to operate in the premises of the world-renowned historical monument. The Division Bench of Chief Justice Chakradhari Sharan Singh and Justice Savitri Ratho was of the view that prescription of a minimum educational qualification would not amount to violation of fundamental right of the appellants under Article 19(1)(g) of the Constitution. The Court further observed – “Merely on the ground that the appellants had operated as photographers without any license in the past owing to the policy in vogue at the material time that did not require license, does not obviate the requirement of obtaining license in terms of the policy that is prevalent now.” Case Background The appellants are guides/photographers working in the precinct of centrally protected monuments of the Sun temple at Konark since decades. They had approached the authorities for issuance of license/identity cards as approved guides and photographers. Accordingly, 110 persons were issued identity cards by the Tourism Officer, Konark in the year 2001-02 to operate as photographers under a policy framed on 29.02.2007 in exercise of power under Section 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. All of them are the appellants herein along with certain other persons who were interested in the same profession and had applied for identity cards. A writ petition was filed seeking grant of license against pending applications under the 2007 policy. When the petition was pending, the Archaeological Survey of India (ASI) came up with a new policy in the year 2017 to regulate and administer licenses required under Rule 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 for the photographers to perform within centrally protected monuments for monetary consideration. The new notification contained certain eligibility conditions which were not there in the earlier notice against which the appellants had submitted their applications. In the said notification, minimum qualification of matriculation was prescribed for the photographers and the applicants were required to undergo a written examination and interview. The 154 appellants preferred this intra-Court appeal against the decision of a Single Bench which had turned down their plea for grant of license in terms of the Policy of 2007 issued by the ASI, in view of supersession of the said Policy by a subsequent Gazette Notification dated 24.05.2017 published on 25.05.2017. The Single Judge had rejected the claim of the appellants on the ground that issuance of license being an administrative matter, there could not be a direction for issuance of the same under the old Policy when the new Policy was in place. He had further observed that even when the appellants had got licenses under the old Policy, they would have to apply for renewal under the 2017 Policy. Contentions Senior Advocate Subir Palit, appearing for the appellants, submitted the appellants, who have been working as photographers for over two decades and some for three decades, are suddenly without a livelihood on account of the changed Policy of 2017. It was submitted that the Policy of 2017 affects the livelihood of several hundreds of photographers and thus, it was urged that the ASI should consider providing one time exception to those who may not be having matriculation qualification but have been issued identity cards by the Department of Tourism, Government of Odisha. The Senior Counsel for the appellants further argued that by introducing the Policy of 2017, the ASI prohibited the means of self-employment of the appellants which is arbitrary and utterly jeopardizes rights guaranteed to the appellants under Article 19(1)(g) of the Constitution. Court's Observations The Court referred to the decision of the Delhi High Court in Mata Prasad & Ors. v. Union of India & Ors., 2023 LiveLaw (Del) 949 wherein identical issues were raised challenging Clause 2.7 of the 2017 Policy. The Court therein rejected the contention regarding the rights of the petitioners guaranteed under Article 19(1)(g) of the Constitution being jeopardized. It held that obtaining license by following the due selection procedure laid down by the ASI does not in any manner violate the rights of the petitioners under Article 19(1)(g). The Court agreed with the view expressed by the Delhi High Court that the fundamental rights enshrined in Article 19(1)(g) are not absolute and unqualified but subject to reasonable restrictions. “We also agree with the view taken by the Delhi High Court that the persons who seek to operate as photographers in ASI...

Right To Trade Not Absolute: Orissa High Court Declines To Relax Minimum Qualifications For Konark Temple Tourist Guides' Licenses

Jyoti Prakash Dutta

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Right To Trade Not Absolute: Orissa High Court Declines To Relax Minimum Qualifications For Konark Temple Tourist Guides' Licenses

Jyoti Prakash Dutta

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